TMI Blog2014 (8) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. High Court clearly erred in quashing the complaint on the ground that there was no recital in the complaint that the notice under Section 138 of the NI Act was served upon the accused. The High Court also erred in quashing the complaint on the ground that there was no proof either that the notice was served or it was returned unserved/unclaimed. That is a matter of evidence - service of notice is a matter of evidence and proof and it would be premature at the stage of issuance of process to move the High Court for quashing of the proceeding under Section 482 of the Cr.P.C - Decided in favour of appellants. - Criminal Appeal No. 1523 of 2014 [Arising out of Special Leave Petition (Crl.) No. 8783 of 2013] - - - Dated:- 16-7-2014 - Ranjana Prakash Desai And N. V. Ramana,JJ. JUDGMENT (Smt. ) Ranjana Prakash Desai, J. 1. Leave granted. 2. The appellant is the complainant. He has challenged the judgment and order dated 21/03/2013 passed by the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Writ Petition No.1131 of 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, is it open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in para 8, the complainant itself is not maintainable. We accordingly quash the complaint. 4. We have heard, at some length, Mr. S.S. Choudhari, learned counsel appearing for the appellant. Counsel submitted that the High Court has erred in quashing the complaint on the ground that complaint is silent about service of notice. Counsel submitted that in C.C. Alavi Haji v. Palapetty Muhammed Anr. (2007) 6 SCC 555 , a three Judge Bench of this Court has conclusively decided this issue. It is held in this case that it is not necessary to aver in the complaint that notice was served upon the accused. The impugned order, therefore, deserves to be set aside. 5. We are inclined to agree with the counsel for the appellant. 6. In C.C. Alavi Haji, a three-Judge Bench of this Court was dealing with the question referred by a two-Judge Bench for consideration. The referring Bench was of the view that in D. Vinod Shivappa v. Nanda Belliappa (2006) 6 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre-mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. 9. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh (1992) 1 SCC 647; State of M.P. Vs. Hiralal Ors. (1996) 7 SCC 523 and V.Raja Kumari Vs. P.Subbarama Naidu Anr. (2004) 8 SCC 74] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. 10. It is thus clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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